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Legal Negotiation: A Study of Strategies in Search of a Theory

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... An empirical 1 Raiffa (1982), Pruitt (1981), Fisher and Ury (1981), Rubin and Brown (1975), Williams (1983) and Pietroni and Polezzi (2007). 2 Parker Follett (1925) and Gulliver (1979). 3 Menkel-Meadow (1983). 4 Shell (2005. ...
... 6 Williams (1983). 7 Menkel-Meadow (1983). 8 Fisher and Ury (1981). ...
Chapter
Negotiating skills are not part of the traditional lawyer’s training. Today, however, advanced skills are required of the lawyer to settle disputes consensually before trial. Cognitive, psycho-social and communication aspects should be trained in a purposed way. Cognitive knowledge and brain technology may be combined to develop targeted empowering programs during negotiation training. This article outlines the methodology for a pilot study that investigates the cooperative problem-solving skills development through neuroscientific devices that are non-invasive, portable and therefore usable in ecological contexts. The use of Brain-Computer-Interface would allow trained negotiators to explicitly develop mind tools and skills, with greater interaction between intuitive and analytical thinking systems.
... And now we know, in addition to such factors as case type, class, region, religious group, possibly race and gender, etc., there is also national and cultural variation in when people decide to go to lawyers (especially when there is greater access to justice, through government-supported judicare, legal aid or other social welfare or subsidy systems) (Kritzer, 1991(Kritzer, , 2008Genn, 1999;Genn & Paterson, 2002). The provision of legal services to those of low income in the United States has, for decades, been well below governmental subsidies in other countries (see Curran, 1977;Cappelletti & Garth, 1979;Legal Services Corporation, 1980Meeker et al., 1985;ABA, 1994;Meeker et al., 2000;Rhode, 2004;Kritzer, 2010) and in the last three decades whatever government support there has been, particularly through the Legal Services Corporation funding, has been greatly diminished as annual allocation of funds for legal services has been reduced in real dollars almost threefold (the current budget allocation is close to what it was in actual dollars in the early 1980s when I first did studies of allocation of legal services to the poor) (Cohen, 2013;Menkel-Meadow & Meadow, 1983;Menkel-Meadow, 1984a; see also Abel, 1985). The United States is not alone in decreasing governmental support for legal services for those who can't afford them; recent changes in British Legal Aid have greatly reduced allocations for civil justice, as most legal aid is allocated to criminal defense, and civil problems are increasingly being referred to other processes (e.g. ...
... [16] For the scholarly versions and skills imperatives of my early work, see Menkel-Meadow (1983, 1984b. [17] In the cited articles, I provide fuller descriptions of both the legal concepts and contributions of nonlegal scholars to the origins of the modern ADR movement. ...
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This paper from the Symposium/Conference at Onati on Too Many Lawyers? suggests that there are not too many lawyers, nor too much legal education. Instead we should think about what legal education is ‘good’ for (what should those with a legal education do?), including problem solving, dispute resolution and reallocation of legal services for those underserved. The paper looks at how other professions (business consulting and architecture) have reframed themselves for new conditions of work – with varying supply and demand changes in their relevant fields. The paper also discusses implications for legal education of a broader conception of what lawyers learn and do.
... Most importantly, the Negotiation Journal was, from the start, inter- disciplinary -recognizing that the insights and knowledge of our new field derived from research, theory, empirical studies, and rigorous analysis in such basic fields as political science, sociology, psychology, economics, and anthropology, as well as more hybrid or applied fields such as game theory, decision sciences, urban planning, law, organizational development, and management (Menkel-Meadow 1983;Bazerman 2005). The reach of articles was local (e.g., Mika 1987) and interpersonal, as well as multicul- tural and international (e.g., Salacuse 1988) from the start. ...
... 3. I sought, in my own summary of this path-breaking work, to describe the canonical and cross-disciplinary knowledge it created (Menkel-Meadow 1983). ...
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The essay reviews the content of twenty-five years of the Harvard Program on Negotiation's Negotiation Journal, identifying themes and issues explored on its pages in the past, the current issues challenging the field’s scholars and practitioners, and the issues likely to confront us in the future. It argues that while we in the field hoped for simple, elegant, and universal theories of negotiation and conflict resolution, the last twenty-five years have demonstrated the increasing complexification of negotiation theory and practice, from increased numbers of parties and issues, and dilemmas of intertemporal commitments, ethics, accountability, and relationships of private action to public responsibility.
... I first met Howard Raiffa in person when I was a visiting scholar at PON in 1984 and 1985, just after I had published my first two articles on negotiation and had spoken at the PON faculty seminar. I had already encountered Howard's work when I read The Art and Science of Negotiation (1982) while writing two articles about how legal negotiation should be considered as an analytic "problem-solving" exercise, rather than in more legally conventional distributive, adversarial terms (Menkel-Meadow 1983, 1984. I was struggling, as a lawyer and legal scholar, with the complexity of both game theory and more cooperative (I prefer "collaborative") "games" or problems. ...
... His findings were later replicated by Schneider (2002), who conducted a study of legal practitioners in a different geographical setting. Earlier research by Lowenthal (1982) and Menkel-Meadow (1983 and1984) had also attempted to explain differences in negotiation results in terms of lawyers' negotiating styles and strategies ("adversarial" or "problem-solving"). ...
Article
The role of gender in negotiation has been extensively explored and documented in a now rich body of literature. A main strand of empirical evidence suggests that women, largely due to their gender socialization, tend to be weaker negotiators relative to men and consequently, less effective in pursuing their economic, social or family interests in diverse bargaining settings. We will present findings from a Greek setting that paint a different picture, in which gender does not have a strong impact on the negotiating process when the negotiating parties are members of a competitive profession. We used two different classrooms (one comprised of Greek attorneys-at-law and another comprised of Greek business students) as laboratory settings and distributed self-assessment questionnaires to test for negotiator style and gender-specific negotiation behavior. Our findings suggest that differences which may be attributed to gender are less pronounced for Greek legal practitioners. Stronger determinants of successful outcomes in negotiations were negotiators' individual characteristics (competitive negotiating style, persuasion, social and emotional intelligence) and the conformity of Greek lawyers of both sexes to the competitive group norms of their profession. All successful negotiators fit the profile of ¿pragmatic problem-solver¿ - and most of these negotiators were female lawyers. We discuss these findings in the context of a larger social setting, especially by reference to the changing hierarchies and shifts in power in a legal profession increasingly populated by women.
Article
This article adds consideration of context to the continuing focus on critical moments. In particular, there are contextual circumstances and other factors in which a critical moment involves bringing things to a halt—saying “no.” This is contrary to the improvisational notion of “yes, and” and it is underappreciated in the negotiation literature.
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This chapter represents an effort to link concepts that appear to be and are commonly placed in distant theoretical areas but belong much closer together in practical terms: the principles of internet governance, and the networked information society converging in rules on one hand; and self-regulation competences required for collaborative and alternative conflict management on the other. They condense the public and the private roles in compatible regulatory models that could match sociability, economics and technologies of the times. It is an essay on competences, public policies that are not preceded by standards and principles that do not seem to have been captured by the laws. The institutionalization strategy on Alternative Dispute Resolution (ADR) and Online Dispute Resolution (ODR) for cross-border consumer redress in the European Union will be the reference to assess regulatory impact and argue for consistency. Legislating ADR and ODR aims at supporting electronic commerce as an essential component of the digital agenda; the flagship initiative that establishes the digital single market according to the European 2020 Strategy. Questions must be raised considering the marked emphasis placed on promoting social changes merely by passing new laws. The importance of understanding that the European Union is not capable of supplanting its members in turning institutional formulas into operational strategies is underlined, as well as a reflection on the need to support the social and economic transformations that have followed the remarkable developments in telecommunications and other digital technologies. Conceiving a European dispute resolution culture, enabled and mediatized by technological solutions is a viable solution to prevent more of the perceived shortcomings of public actions, and a truly innovative ODR systems design, could support the transition. This text invites the integration of concepts, disciplines and practices, respect for principles and their consistent application to solutions that could improve human transactions for a sustainable digital economy where empowered private actors can efficiently contribute to the ongoing collective transformations of the global governance.
Article
Over the past two decades, there has been an ever-increasing amount of attention paid to negotiation and dispute resolution in practice and inscholarly and general audience publications. The author in 1983 suggested that negotiation was a study of “strategies in search of a theory.” In this review essay, she considers three recently published books - two awardwinning publications specifically focused on negotiation and a third on creativity that offers much food for thought for people in the negotiation field. In addition to a description and assessment of the contributions of each book, she also speculates on where we have come thus far “in search of a theory” (or theories) of negotiation, and offers a series of proposals for future study.
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This essay analyzes the treatment of legal negotiations in films, literature, TV and various forms of popular culture, focusing on how legal negotiations are conceptualized often as competitive, war-like battles of will and force or cleverness, rather than more modern approaches to negotiation as a site of collaborative human problem solving and joint decision making. The essay begins a filmography of legal negotiation, including both popular films and TV and serious documentary treatments of both domestic and international negotiations. The article concludes by discussing some newer approaches to legal and international conflict negotiations evidenced in a few new films and documentaries and suggests that life is advancing faster than art in this area: to wit, modern negotiations are more complex in execution, performance and agreement-making and are not well depicted in many fictional and formulaic forms.
Article
This is a review essay on the occasion of the 25th anniversary of the publication of Roger Fisher, William Ury and Bruce Patton's, Getting to Yes, which reviews the interdisciplinary field of Negotiation and how it came to be, as well as where it is heading. The review focuses on constituent questions, constituent disciplines, the legacy of GTY on theory, practice and pedagogy and discusses the issue of why more of the world's actors and institutions have not employed more integrative, problem-solving and peace seeking approaches to conflicts at all levels. It also reports, more optimistically, on the enormous contributions GTY and its progeny have made to how some people approach each other in resolving disputes and negotiating new transactions and relationships. This is a short synthesis and intellectual history of the protean interdisciplinary field of negotiation.
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Does the field of conflict resolution have any broadly applicable theories that "work" across the different domains of international and domestic conflict? Or, are contexts, participants, and resources so "domain" specific and variable that only "thick descriptions" of particular contexts will do? These are important questions which have been plaguing me in this depressing time for conflict resolution professionals, from September 11,2001 (9/11), to the war against Iraq. Have we learned anything about conflict resolution that really does improve our ability to describe, predict, and act to reduce unnecessary and harmful conflict? These are the questions I want to explore in this essay, all the while knowing that I will ask more questions than I have answers to. My hope is to spark more rigorous attention to the possibility of "comparative dispute resolution" study and practice, using key concepts, theories, empirical studies, practical wisdom, and experiential insights to spark and encourage more "multi-level" and multi-unit analysis of some of our "shared" propositions.
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